Case Number: BC642978 Hearing Date: June 25, 2018 Dept: 4

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY: Plaintiff Margarita Garcia

Motion for Summary Judgment

The court considered the moving and opposition papers. The Court notes that the opposition papers only include responses in opposition to defendant’s separate statement, declaration of Martin S. Chu, and appendix of exhibits. The Court has not received an actual opposition with points and authorities.

Background

On December 6, 2016, plaintiff Margarita Garcia filed a complaint against defendant City of Los Angeles for premises liability and negligence based on a trip and fall incident.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Discussion

Defendant City of Los Angeles (“City”) requests that the court enter summary judgment in its favor and against plaintiffs pursuant to CCP § 437c on the grounds that there is no triable ssue of material fact and defendant is therefore entitled to judgment as a matter of law.

In the complaint, plaintiffs alleges that on July 7, 2016, plaintiff was walking on the south sidewalk in front of 2320 E. 4th Street, Los Angeles, CA 90033 when she tripped over the uneven sidewalk pavement, lost her balance, and hit her face against a wooden power pole and fell to the ground. Complaint, Attachment, ¶ L-1. Consequently, plaintiff alleges she suffered a shoulder fracture. Ibid. Plaintiff alleges defendant was negligent in maintenance of the sidewalk pavement, which was the direct and proximate cause of plaintiff’s injuries. Complaint, Attachment, ¶GN-1.

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” Gov. Code § 815.

Gov. § 835 states: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Issue 1: Plaintiff’s first cause of action fails because the minor sidewalk differential, which was less than an inch, is trivial as a matter of law and not a “dangerous condition.”

The term “dangerous condition” means a “condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Gov. Code § 830(a). “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.” Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal. 3d 799, 810. “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” Matthews v. City of Cerritos (1992) 2 Cal. App. 4th 1380, 1384. “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.” Fredette v. City of Long Beach (1986) 187 Cal. App. 3d 122, 130 n.5.

As to whether a condition is trivial as a matter of law, “[t]he legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area.” Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559, 567-568; Kasparian v. Avalonbay Communities (2008) 156 Cal. App. 4th 11, 27 (“the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.”); Doiquist v. City of Bellflower (1987) 196 Cal. App. 3d 261, 267 (court must look at evidence of other factors to determine whether a condition is dangerous, along with considering the height or depth).

Although cases have held that defects ranging from three-fourths of an inch to one and one-half inches are trivial as a matter of law, the above analysis regarding the size of the defect and its attendant factors is necessary to make such a determination. See Whiting v. City of National City (1937) 9 Cal.2d 163, 166; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529, 531.

Defendant argues that the sidewalk differential is trivial as a matter of law. Defendant contends that the uplift alleged to cause plaintiff’s fall is about one-half inch. Exh. C-G. Plaintiff disputes this fact and states that the differential is three-fourths inch. Chu Decl. ¶2, Exh. 1. Actually, defendant’s evidence shows that the differential is three-fourths inch, and defendant likely stated one-half inch in error. It appears that both parties actually agree that it is three-fourths inch. Regardless, whether the differential is three-fourths inch or one-half inch, both differentials are trivial as a matter of law absent other aggravating factors.

Further, defendant contends, no aggravating circumstances exist in this case. Defendant asserts that the evidence shows that plaintiff tripped when she encountered a sidewalk slab that was raised slightly about above the surface of its adjacent adjoining slab. Other than the unaligned panels, there was nothing irregular about the sidewalk panel plaintiff tripped over. There was nothing covering the uneven sidewalk. The weather was good, it was sunny out, and the sidewalk was dry. Plaintiff even looked at the sidewalk in front of her but did not see that it was uneven. There were no broken or jagged edges in or around the panels. Plaintiff was looking at her children, who were next to her on her right, before she tripped. Further, prior to the incident, plaintiff would take her son to get his hair cut and walk by the same spot where she tripped. Plaintiff was also walking close to the curb (close to traffic) when she tripped, but there was enough room between plaintiff and the curb for another person.

In opposition, plaintiff argues that it is a triable issue as to whether the defect is trivial. Plaintiff disputes that there was nothing preventing her from seeing the raised sidewalk panel. Plaintiff argues her attention was distracted by watching her children, nearby vendors, proximity to the street, other pedestrians, a phone pole directly ahead, and a trash can to avoid.

The court finds that defendant has met its burden of showing that plaintiff cannot establish the elements for dangerous condition of public property because the sidewalk defect is trivial as a matter of law. Both parties present evidence that the highest point of the differential is three-fourths inch. The point of differential is close to the street, which is not in the area where pedestrians would normally walk. Plaintiff is also familiar with the area because she has walked in the area before to take her son to get a haircut. In addition, there were no other conditions present that would render the trivial defect “more dangerous than its mere abstract depth would indicate,” such as rain, fog, or darkness. Plaintiff fails to present evidence to raise a triable issue of material fact that the condition created a substantial risk of injury.

Issue 2: Plaintiff’s first cause of action fails because there is no evidence that the City should have known of the sidewalk differential and its allegedly dangerous character.

Gov. Code § 835.2(b) states: “A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”

Defendant argues that it did not have actual or constructive notice of the condition. Defendant argues that in the eighteen years preceding plaintiff’s accident, City received no claims regarding the uplifted sidewalk where plaintiff tripped. Busy Decl. ¶ 2. Further, the City’s Bureau of Street Services had received no complaints regarding the uplifted sidewalk. Benjamins Decl. ¶2.

In opposition, plaintiff contends that City had notice because there are inspections and reports from March 18,2014 and August 25, 2014 disclosed by defendant’s discovery responses. Chu Decl. ¶¶4-5, Exhs. 3-4. The discovery response is actually in response to Form Interrogatory 12.4, which relates to photographs depicting any place, object, or individual concerning the incident of plaintiff’s injuries. The responses show that investigators at the City Attorney’s office had photographs of the general location of the alleged incident taken in 2014. Although this does not show that defendant had notice of the condition, it does create a triable issue of material fact as to whether City had notice of the condition prior to the incident on July 7, 2016.

Defendant has not met its burden of showing that plaintiff cannot establish constructive notice. However, the first cause of action still fails because the sidewalk differential is trivial as a matter of law.

Issue 3: Plaintiff’s second cause of action fails because the exclusive remedy for injuries caused by a condition of public property is under Government Code Section 835.

Under the statutory scheme in California, all government tort liability must be based on statute. Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 653. Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409. Accordingly, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable. Ibid. In short, sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute. Ibid.

Further, in order to state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 96. Since the duty of a public entity can only be created by statute, the statute claimed to establish the duty must be identified. Id.

Therefore, plaintiff’s claim for general negligence cannot prevail.

The motion for summary judgment is therefore GRANTED.

Defendant City is ordered to give notice of this ruling and to lodge a proposed judgment with the court.

IT IS SO ORDERED.

DATED: June 25, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court